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Tort | Negligence

Breach of Duty: Standard of Proof

Revision Note | Degree

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  • claimant (C) must show on the balance of probabilities: defendant (D) breached duty of care owed & breach caused C loss or damage
  • therefore, general rule: D does not have to show he was not negligent

Res ipsa loquitur

  • res ipsa loquitur (the thing speaks for itself) principle developed to aid C in situations where negligence can only be inferred

    Scott v London & St Katherine's Docks (1865) 3 H & C


    • plaintiff (P) injured by 6 bags of sugar, which fell from D's warehouse


    • is D liable, despite P only being unable to infer negligence?


    • established sufficient if P proves: D in control of the situation (which led to injury), accident would not normally occur without carelessness & exact cause of accident unknown
    • facts spoke for themselves & therefore D had to prove that he was not negligent


  • firstly, events leading to accident must have been solely under D's control

    Gee v Metropolitan Railway (1873) LR 8 QB 161

    • P injured by falling out of a door on D's underground train, immediately after leaving station
    • the doors were controlled by the driver
    • is D liable, despite P only being unable to infer negligence?
    • D liable: in control of closing doors & injury was likely caused by negligence, although exact cause not known

    Easson v London & North Eastern Railway [1944] 2 KB 421

    • P injured by falling out of a door on D's train, several miles from last station
    • the doors were operated manually by passengers
    • is D liable, despite P only being unable to infer negligence?
    • D not liable: not sufficiently in control of closing the door & distance travelled meant another passenger may have interfered with door
    • distinguished from Gee v Metropolitan Railway (1873) on basis of D's lack of control


  • secondly, accident must not have normally happened without negligence
  • clearly illustrated in Scott v London & St Katherine's Docks (1865), where bags of sugar would not normally have fallen

Unknown cause

  • thirdly, cause of accident must be unknown, if known the facts no longer speak for themselves

    Barkway v South Wales Transport [1950] 1 All ER 392

    • P injured by D's bus veering across the road
    • loss of control caused by a flat tyre
    • could P rely on res ipsa loquitur?
    • P could not rely on res ipsa loquitur: exact cause of accident known ( a flat tyre)
    • therefore, P had to prove flat tyre was caused by D's negligence (he succeeded)
  • res ispa loquitur makes prima facie inference of negligence against D, which D must rebut
  • D may either: show how accident occurred (without negligence on his part) or demonstrate he used reasonable care at all times

The Civil Evidence Act 1968

  • if D has been convicted of relevant offence, C may be assisted by statutory provision

    S11 Convictions as evidence in civil proceedings
    • S11(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom... shall... be admissible in evidence for the purpose of proving... that he committed that offence..
  • therefore, if D convicted of a relevant offence it will be taken he did commit, unless he can prove contrary
  • C can use as evidence of D's carelessness
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